ELR Citation: ELR 21452
No(s). 3:93-cv-912WS (S.D. Miss. Mar 30, 1994)

The court dismisses an action against the U.S. Environmental Protection Agency (EPA) by the distributor of a mound leveler who claims that the product, which is used to control fire ants, is not a pesticide subject to registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court first holds that it lacks personal jurisdiction over EPA, because the distributor failed to serve the government with a copy of the summons and complaint. The court holds that it also lacks subject matter jurisdiction over the suit, because FIFRA does not provide a private right of action. Congress did not intend that the Act protect a particular class of citizens and did not expressly provide for a private right-of-action. Inferring such a right would conflict with the underlying purposes of the legislative scheme, which divides enforcement authority between the states and EPA. Moreover, cases that have recognized a private right-of-action under FIFRA §136n(c) for pesticide registrants do not apply, because the distributor is not a registrant under the Act. The distributor's claim would fail even if the court had jurisdiction, because the Texas Court of Appeals has already decided that the mound leveler at issue is a pesticide. Affording preclusive effect to the state court judgment, the court holds that the issue whether the product is a pesticide has been resolved against the distributor. The court holds that EPA was authorized to issue stop sale, use, or removal orders to restrict the product's sale and distribution, because there is undisputed evidence to support the Agency's belief that the mound leveler was a pesticide being sold and distributed in violation of FIFRA. Finally, the court holds that the Eleventh Amendment bars the distributor's claims for monetary relief against the state of Mississippi and dismisses plaintiff's claims against the state for injunctive relief, because the state did not issue the stop sale orders.

Counsel for Plaintiff
Dana L. Turner
Rt. 2, Box B-192, Diana TX 75643
(903) 968-2175

Counsel for Defendants
Robert G. Anderson, Ass't U.S. Attorney
U.S. Attorney's Office
One Jackson Pl., 188 E. Capitol St., Jackson MS 39201
(601) 965-4480